Rajasthan High Court
Ashok And Anr vs State Of Rajasthan Through P P on 27 August, 2021
Bench: Sandeep Mehta, Rameshwar Vyas
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1005/2017
1. Jagdish Son Of Harji Gurjar, By Caste Gurjar, R/o
Baniyani, Police Station Kaithoon, District Kota.
2. Daya Ram Alias Bhaya Son Of Harji Gurjar, By Caste
Gurjar, R/o Baniyani, Police Station Kaithoon, District
Kota.
3. Shambhu Dayal Son Of Jagdish Gurjar, By Caste Gurjar,
R/o Khedla, Police Station Taleda, District Bundi.
----Appellants
Versus
State Of Rajasthan Through P.P.
----Respondent
Connected With
D.B. Criminal Appeal No. 806/2017
Mahaveer S/o Mangilal Mehar B/c Mehar, R/o Baniyani P.s.
Kaithun Distt. Kota At Present Confined At Central Jail Kota
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
D.B. Criminal Appeal No. 876/2017
1. Ashok Son Of Shri Radhakishan Gurjar, By Caste Gurjar,
R/o Baniyani, Police Station Kaithun, District Kota
Rajasthan At Present In Central Jail, Kota
2. Girraj Son Of Shri Radhakishan Gurjar, By Caste Gurjar,
R/o Baniyani, Police Station Kaithun, District Kota
Rajasthan At Present In Central Jail, Kota
----Appellants
Versus
The State Of Rajasthan Through P.P.
----Respondent
(Downloaded on 27/08/2021 at 09:29:14 PM)
2
D.B. Criminal Appeal No. 939/2017
Pappu @ Mahendra Son Of Loonkaran Gurjar By Caste Gurjar,
R/o Baniyani, Police Station Kaithoon, District Kota. Accused
Appellant Is Confined In Central Jail Kota.
----Appellant
Versus
The State Of Rajasthan Through P.p.
----Respondent
For Appellant(s) : Mr. Ashvin Garg
Mr. Abdul Kalam Khan
Mr. Mukesh Chouhan
Mr. Narendra Prasad Meena
Mr. Surendra Sharma (through V.C.)
Mr. Vijay Choudhary
For Respondent(s) : Ms. Rekha Madnani, PP
Mr. Suresh Sahni
Mr. R.M. Sharma
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
Date of pronouncement : 27/08/2021
Judgment reserved on : 19/08/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. These four appeals have been preferred against the judgment
dated 20.04.2017 passed by Additional Sessions Judge (Women
Atrocities Cases) No.2, Kota and thus the same are being heard and
decided together by this common judgment. The appellants herein
above have been convicted and sentenced as below by the learned
trial Court. Being aggrieved by the conviction and sentenced awarded
to them, the appellants have preferred these appeals under Section
374 Cr.P.C.
(I) APPEAL No.1005/2017:
Accused appellants Jagdish, Dayaram and
Shambhu Dayal convicted for the offences
punishable under:-
(i) Sec.148 IPC: Sentenced to undergo simple
imprisonment for two years.
(ii) Sec.323/149 IPC: Sentenced to simple imprisonment
for one year.
(iii) Sec.302/149 IPC: Sentenced to imprisonment for life
and to pay fine of Rs.50,000/-, in default of payment of
fine to further undergo simple imprisonment for two
months.
(II) APPEAL NO. 806/2017:
Accused appellant Mahaveer convicted for the
offences punishable under:-
(i) Sec.148 IPC: Sentenced to undergo simple
imprisonment for two years.
(ii) Sec.323/149 IPC: Sentenced to simple imprisonment
for one year.
(iii) Sec.302/149 IPC: Sentenced to imprisonment for life
and to pay fine of Rs.50,000/-, in default of payment of
fine to further undergo simple imprisonment for two
months.
(III) Appeal No. 876/2017:
Accused appellants Ashok & Girraj convicted for the
offences punishable under:-
(i) Sec.148 IPC : Sentenced to undergo simple
imprisonment for two years.
(ii) Sec.323/149 IPC: Sentenced to simple imprisonment for
one year.
(iii) Sec.302/149 IPC: Sentenced to imprisonment for life
and to pay fine of Rs.50,000/-, in default of payment of fine
to further undergo simple imprisonment for two months.
(IV) Appeal No. 939/2017:
Accused appellant Pappu @ Mahendra convicted for
offences punishable under :-
(i) Sec.148 IPC : Sentenced to undergo simple
imprisonment for two years.
(ii) Sec.323/149 IPC: Sentenced to simple imprisonment
for one year.
(iii) Sec.302/149 IPC: Sentenced to imprisonment for life
and to pay fine of Rs.50,000/-, in default of payment of
fine to further undergo simple imprisonment for two
months.
2. Succinctly stated the facts relevant and essential for decision of
these appeals are noted herein below. A Parcha Bayan (Ex.P9) of
injured Mahesh Gurjar (PW8) was recorded by ASI of Police Station,
Kethaun (Kota) at M.B.S. Hospital, Kota wherein, the injured alleged
that on the same day, he alongwith his brother Mangi Lal (deceased),
maternal uncle Hiralal (PW6) and Mahaveer (PW18) had gone from
Rangbadi, Kota in a jeep to the Gram Panchayat Baniyani for
submitting tenders. They reached Baniyani at 12:30 p.m. and
submitted their tenders. The time for accepting the tenders was up to
1:00 p.m. At about 2:30 p.m. they were informed that the Sarpanch
and Up-Sarpanch were not available and thus, the tenders would not
be opened on the same day and the next date would be informed later
on. After this information, the informant and his companions were
moving out from Gram Panchayat when the accused Jagdish, Daya
Ram, Ramesh, Devlal, Ashok, Girraj, Harji and Pappu Gurjar came
there and started hurling abuses towards them and also launched an
attack. Jagdish was armed with farsa like an axe, Dayaram was having
a gandasi and the other accused were holding iron rods and pipes. It
was further alleged that Jagdish and Dayaram inflicted blows with their
respective weapons i.e. axe and gandasi on the head of Mangi Lal who
fell down. Thereafter, the remaining accused gave a beating to the
victim by iron rods and pipes. The informant tried to intervene, on
which he too was beaten all over the body. Hiralal also tried to
intervene but he also met the same fate. While the incident was going
on, Smt. Bhuri Bai, mother of Jagdish and Sugna Bai W/o Shambhu
came there and they also participated in the assault. It was alleged
that the accused persons had launched the assault on the
complainant-party without there being any reason or previous
animosity. Their jeep and motorcycle were also damaged. An
ambulance was called to the spot and all the three injured were taken
to M.B.S. Hospital where they were admitted for treatment. On the
basis of this parcha bayan, an FIR No.91/2011 (Ex.P22) came to be
registered at the police station, Kethun for the offence under Sections
147, 148, 149, 323 and 307 of IPC and investigation was commenced.
During the course of investigation, the accused-appellants were
arrested whereas, two accused Ramesh and Devlal are reported to be
still absconding.
3. The injured Mangi Lal passed away while undergoing treatment
at M.B.S. Hospital, on which, the offence under Section 302 IPC was
added to the case. The dead body of Mangi Lal was subjected to
postmortem by a Medical Board constituted at M.B.S. Hospital which
issued the postmortem report (Ex.P14) proved by Dr. Arun Sharma
(PW-13), taking note of the following antemortem injuries:-
(1) Stitched wound 5 cm long on the back side of head near middle
line.
(2) Cut wound 2 ½ cm x ½ cm on the proximal part of ring finger.
(3) Cut wound 1 ½ x ¼ cm skin deep on the left middle finger.
(4) Abrasions 1 ½ x 1 ½ cm on the upper back of the right leg.
(5) Bruises ad measuring 6x2 cm on the left forearm.
On opening the head injury, the right frontal bone was found
fractured and underneath the wound, a thick subdural haematoma was
seen which damaged the brain and proved fatal. The injury no.2 was
also found to be grievous in nature. Opinion was expressed by the
Board that head injury was sufficient in the ordinary course of nature
to cause death and proved fatal.
4. After concluding the investigation, a charge-sheet was filed
against the appellants herein. As the offence under Section 302 IPC
was exclusively triable by the Court of sessions, the case was
committed and transferred to the Court of Additional Sessions Judge
(Women Atrocities Cases) No.2, Kota for trial where charges were
framed against the appellants for the offence punishable under
Sections 148, 323/149, 302/149, 427/129 IPC. The accused pleaded
not guilty and claimed trial. The prosecution examined as many as 36
witnesses and exhibited 48 documents to prove its case. Upon being
questioned under Section 313 Cr.P.C. and when confronted with the
circumstances appearing against them in the prosecution evidence, the
accused claimed to be innocent but did not lead any evidence in
defence. After hearing the arguments advanced by the defence
counsel and the learned Public Prosecutor, and appreciating the
evidence available on record, the learned trial Court proceeded to
convict and sentence the appellants as above. Hence these appeals.
5. Learned counsel representing the accused-appellant vehemently
and fervently, urged that the entire prosecution case is false and
fabricated. The appellants herein are residents of Village Baniyani
whereas, members of the complainant party were outsiders and they
had no business to be in the village Baniyani at the time of incident.
The pretext that they had come to village Baniyani for submitting
some tender is totally false. As a matter of fact, the complainant party
had come to village Baniyani for oblique motives with an intention to
commit an offence. They forcibly entered into the Panchyat Bhawan
and damaged public property and also caused injuries to various
persons, for which an FIR No.90/2011 prior in point of time to the FIR
of the present case came to be registered against the members of
complainant party who have been charge-sheeted in that case after
investigation. While the complainant party was indulging in the
mischief and violence at the Panchayat Bhawan, the villagers of the
village Baniyani came there with a bonafide intention to protect the
public property of their village and in this process a free fight ensued
and an unintentional injury landed on the head of Mangi Lal which
unfortunately proved fatal. It was vehemently and fervently urged that
the case is of exercise of right of private defence or alternatively of a
free fight, and therefore, the provisions of Sections 148 and 149 IPC
which provide for vicarious liability, could not have been applied and
each accused could only have been held responsible for his individual
act. It was submitted that the fatal injury caused to deceased Mangi
Lal is specifically attributed to the accused-appellant Jagdish. However,
the contention of the defence counsel was that the prosecution theory
regarding accused Dayaram having inflicted the sharp weapon injury
on the hand of the deceased Mangi Lal, is totally unreliable. Learned
counsel thus urged that as there is no plausible evidence regarding the
specific role of accused persons other than Jagdish, the remaining
accused persons deserve to be acquitted by giving them the benefit of
doubt. They sought acceptance of these appeals on these grounds.
6. Per contra, learned Public Prosecutor and Mr. Suresh Sahni,
learned counsel representing the complainant vehemently and
fervently opposed the submissions advanced by the appellants'
counsel. They contended that the complainant party had bonafide
gone to the village Baniyani for submitting their tenders. The villagers
of the village Baniyani were angered by the fact that the outsiders
were trying to file tenders in their village and thus they launched an
indiscriminate unprovoked assault on the complainant party. The
common object of the unlawful assembly formed by the accused
persons was to assault and kill the members of the complainant party.
On these submissions learned Public Prosecutor and the counsel
representing the complainant party sought affirmation of the impugned
judgment and prayed that the appeals should be dismissed.
7. We have given our thoughtful consideration to the submissions
advanced on behalf of counsel for the parties and have gone through
the impugned judgment and have minutely re-appreciated the
evidence available on record.
8. Firstly, we propose to consider the submission that the case is of
free fight and hence, Section 149 IPC providing for vicarious liability
would not have any application in this case. In this regard, we have
minutely scrutinized the allegations set out in the Parcha Bayan (FIR)
(Ex.P9) and the evidence of material prosecution eye witnesses i.e.
Hiralal (PW6), Mahesh Gurjar (PW8) and Mahaveer (PW18). From a
consideration of these narratives, it becomes crystal clear that the
prosecution has come with a pertinent theory that the complainant
party had gone to village Baniyani for submitting their tenders in
relation to some 'Narega Work'. Hiralal (PW6) stated that they reached
the Gram Panchayat in the afternoon and were told that as the
Sarpanch and up-sarpanch were not present, the tender slips would
not be accepted. In cross-examination, witness admitted that neither
he, nor Mangi Lal were doing any contract jobs. The witness feigned
ignorance to the question whether he or Mangi Lal had gone to the
village Baniyani for submitting their tenders. Rather, in answer to a
pertinent question in cross-examination the witnesses admitted that it
was wrong to say that they had gone to the village Baniyani for
submitting tenders or that they had submitted the tenders. He
admitted that a fight erupted on the issue of submitting the tenders.
Mahesh (PW8) stated that he and his companions had gone to village
Baniyani for submitting tenders. They reached village Baniyani at
12:30 p.m and filed their tenders. They were told that the tender
boxes would be opened at 3 O' clock but then an information was
given that as the Sarpanch and up-sarpanch were absent, the tenders
would not be opened. While they were coming out, accused persons
launched an assault on the informant and his companions. In cross-
examination witness claimed that he had filed a tender but then he
accepted that the tender was submitted by Mangi Lal. The witness
admitted that a criminal case was registered against them for
indulging in violence and causing damage at the Panchayat Bhawan.
The witness Mahaveer (PW18) stated that Mahesh and Mangi Lal
submitted their tenders but later on they were told that tenders would
not be opened and the date would be intimated. The fight took place
thereafter. In cross-examination the witness feigned ignorance as to
what was the work for which the tender was submitted.
9. The investigation of the case was undertaken by the Investigating
Officer namely Chagan Singh (PW23) who admitted in his cross-
examination that a cross case was registered against the members of
the complainant party at police station Kethun for causing damage to
the public property and regarding beating. No document pertaining to
the tender allegedly submitted by the deceased was available on file.
During investigation, he found the claim of the complainant party, that
they had gone to village Baniyani for filing tenders or that they
actually filed the tender, to be false and that there was no reason for
the deceased and companions to have gone to the village Baniyani.
This admission of the Investigation Officer would have a material
bearing on the outcome of the case and the relevant portion of his
testimony is being reproduced herein below for the sake of ready
reference :
";g dguk lgh gS fd bl dsl dk bUkosLVhxs"ku eq>s fn;s tkus ckcr~ dksbZ fyf[kr vkns"k
i=koyh ij miyC/k ugha gSA vt [kqn dgk fd ekSf[kd vkns"k ls fn;k x;k FkkA ;g
dguk lgh gS fd tqckuh vkns"k ls eq>s buosLVhxs"ku fn;k x;k bl lanHkZ esa i=koyh esa
,slk dksbZ uksV Hkh vafdr ugha gSA ;g dguk lgh gS fd bl i=koyh ds eqrkfcd bl
i=koyh dk vuqla/kku ?ku";ke nkl , ,l vkbZ dks lqiqnZ fd;k x;k FkkA i=koyh izkIRk
gksus ds nwljs fnu ls gh eSaus buosLVhxs"ku "kq: dj fn;k FkkA ;g dguk lgh gS fd bl
dsl ls lacaf/kr Økl dsl Hkh gekjs Fkkus esa ntZ gqvk tks ljdkjh lEifRr dks uqdlku o
ekjihV fd, tkus ds lEcU/k esa ntZ gqvk FkkA ;g lgh gS fd e`rd }kjk Vs.Mj Mkyus ls
lacaf/kr nLrkost i=koyh ij miyC/k ugha gS vkSj uk gh e`rd ds lkFk x;s egs"k o
ghjkyky ds }kjk Vs.Mj Mkyus ds lEcU/k eas dksbZ nLrkost i=koyh ij miyC/k gSA ;g
dguk lgh gS fd ftlds uke Vs.Mj Fkk og O;fDr ml fnu ogka ugha x;k FkkA ;g dguk
lgh gS fd esjs vuqla/kku esa Vs.Mj Mkyus o Vs.Mj Mkyus tkus okyh ckr xyr ik;h x;h
FkhA ;g dguk lgh gS fd blds vykok vU; dksbZ dkj.k esjs buosLVhxs"ku esa ugha vk;k
FkkA ;g dguk lgh gS fd tc e`rd o mlds lkfFk;ksa us Vs.Mj Mkyk gh ugha rks mudk
ogka tkus dk dksbZ dkj.k curk Hkh ugha gSA ;g dguk lgh gS fd tc e`rd o mlds
lkfFk;ksa }kjk Vs.Mj Mkyk gh ugha x;k rks ml Vs.Mj dks [kksys tkus o ugha [kksys tkus dk
dksbZ vkSfpR; Hkh ugha gSA izn"kZ ih09 dk Hkkx th ls ,p esjs vuqla/kku ds nkSjku xyr o
vk/kkjghu Ikk;k x;k FkkA izn"kZ ih09 dk Hkkx vkbZ ls ts Vs.Mj Mky--------------------dj fn;k esa
Vs.Mj Mkyus okyh ckr dh esjs vuqla/kku esa iqf"V ugha gqbZ Fkh vt [kqn dgk fd esjs
vuqla/kku esa vk;k Fkk fd ysfdu e`rd ogka x;k FkkA
The Investigating Officer further admitted that the incident
happened when the persons who were arraigned in the FIR
No.90/2011 started a ruckus in the Panchayat Bhawan and had
obstructed the public officials and damaged the furniture.
10. A part of investigation was conducted by Smt. Uma (PW29),
Additional S.P., who admitted in her cross-examination that a cross
case of the present incident being FIR 90/2011 was registered at
police station, Kethun for the offences punishable under Sections 143,
323, 353 IPC and Section 3 of PDPP Act. The incident erupted because
of the offensive activity of the persons who were arraigned in this FIR.
The witnesses pertaining to FIR No.90/2011 were not examined as
such during its investigation, because they were accused in this case
(91/2011). The incident started inside the Panchayat Bhawan and then
spilled outside. What can be culled out from the evidence of these
witnesses is that there was no prior animosity between them and the
accused who had no motive whatsoever to launch an unprovoked
attack on the complainant party.
11. From an overall appreciation of the above evidence, it becomes
apparent that the claim of the complainant party that they submitted
their tenders in the village Baniyani and that the assault was
unilaterally launched by the accused persons without any provocation
is highly doubtful. It appears that the complainant might have actually
gone to the village Baniyani for filing their tenders but they were
unsuccessful in doing so for reasons which were not probed properly
by the investigating agency. Feeling frustrated by their inability to file
tenders, members of the complainant party created a ruckus and
indulged in violence inside the Panchayat Bhawan. The furniture was
damaged, the public officials were obstructed and injuries were also
caused to some persons. It appears that when this offensive activity
was undertaken by the members of the complainant party the accused
persons, who are all residents of the village Baniyani, picked up the
arms to stop them. Manifestly thus, the case has all elements of a free
fight between the parties. Once it is concluded that the case is of free
fight, apparently the concept of vicarious liability under Section 149
IPC cannot be applied to such a case. As the fight was provoked by the
complainant party, the assembly of the accused persons who are local
residents (as opposed to the complainant side) cannot be held to be an
unlawful assembly within the meaning of Section 141 IPC. Reference in
this regard may be had to the Supreme Court decision in the case of
State of Madhya Pradesh Vs. Kalicharan reported in AIR 2019
(SC) 2637, wherein it was observed as under:
"2. We have heard the learned advocates appearing on
behalf of the respective parties at length. Having heard the
learned counsel appearing on behalf of the respective
parties, the findings recorded by the High Court and
considering the evidence on record, we are of the opinion
that the impugned judgment and order passed by the High
Court, insofar as accused Kalicharan, Amar Singh, Kedar,
Abhilakh, Ramgopal, Tejsingh, Gangaram and Vedari are
concerned, is not required to be interfered with. In the
facts and circumstances of the case and considering the
fact that there was a free fight and the role attributed to
the aforesaid accused, the High Court has rightly acquitted
the aforesaid accused for the offences under Sections 148,
302/149 and 325/149 of the IPC. The same is absolutely in
consonance with the decision of this Court in the case of
Kanwarlal v. State of M.P. (2002) 7 SCC 152. Therefore,
the present appeal qua the aforesaid accused (except the
accused-Ramavtar) deserves to be dismissed.
3. Now, so far as the impugned judgment and order passed
by the High Court altering the conviction of the accused-
Ramavtar from Sections 302/149 to Section 304 Part II of
the IPC is concerned, it is required to be noted that the
fatal blow was caused by the said accused Ramavtar. The
deceased Kalyan sustained the injury on his head which
was caused by the accused Ramavtar. The said injury
caused by the accused Ramavtar was on the vital part of
the body i.e. head and proved to be fatal. Merely because
the accused Ramavtar caused the injury on the head by
the blunt side of Farsa, the High Court is not justified in
altering the conviction to Section 304 Part II of the IPC. As
held by this Court in catena of decisions, even in a case of
a single blow, but on the vital part of the body, the case
may fall under Section 302 of the IPC and the accused can
be held guilty for the offence under Section 302 of the IPC.
However, in the facts and circumstances of the case, more
particularly that it was a case of free fight, considering the
fact that the weapon used by the accused Ramavtar was
Farsa and he caused the injury on the vital part of the body
i.e. head which proved to be fatal, in the facts and
circumstances of the case, we are of the opinion that the
High Court has committed a grave error in altering the
conviction of the accused Ramavtar from Sections 302/149
of the IPC to Section 304 Part II of the IPC. In the facts
and circumstances of the case and considering the
evidence on record, more particularly, the medical
evidence and the manner in which the incident took place,
we are of the opinion that the accused Ramavtar should
have been held guilty for the offence under Section 304
Part I of the IPC. To that extent, the impugned judgment
and order passed by the High Court deserves to be
quashed and set aside. The conviction of the accused
Ramavtar is to be altered from Section 304 Part II to
Section 304 Part I of the IPC."
12. Once we have held that the learned trial court was not justified in
invoking the provisions of Sec. 149 CrPC attributing vicarious liability
to the accused persons, manifestly, specific role attributed to individual
accused by the prosecution witnesses would have to be culled out for
fixing their liablity. In this regard, the complainant's counsel tried to
impress upon the court that a specific role for causing fatal injuries to
the deceased Mangilal has been attributed by the prosecution
witnesses to accused Jagdish and Dayaram inasmuch as Jagdish
inflicted the fatal axe blow on the head of deceased Mangilal whereas
the accused Dayaram gave him a Gandasi blow on the fingers, which
resulted into grievous as well as simple injuries.
13. In the Parcha Bayan (Ex.P9), the injured Mahesh (PW8) alleged
that Jagdish gave an axe blow on the head of Mangilal whereas
Dayaram gave a Gandasi blow which also landed on the head of
Mangilal. Eventually, this allegation as set out in the FIR is not
corroborated and is rather contradicted by Medical evidence. As per
the deposition of Medical Jurist Dr. Arun Sharma (PW-13), who was a
member of the Medical Board which issued the postmortem report
(Ex.P14), one injury was noticed on the head of deceased which too
was caused by a blunt weapon. This injury proved fatal.
14. The three star prosecution eye witnesses, who gave evidence
against the accused, are Hiralal, Mahesh Gurjar and Mahaveer. Hiralal
(PW-6) alleged in his examination-in-chief that Jagdish gave an axe
blow on the head of Mangilal and thereafter Dayaram and the
remaining accused, who were armed with Gandasis and iron rods &
pipes also inflicted injuries to Mangilal. The witness alleged in his
examination in chief that Dayaram inflicted a Gandasi blow on the
hand of Mangilal. Mahesh Gurjar, upon being examined as PW-8 stated
that Jagdish was having an axe in hand, of which he gave a blow to
Mangilal. Dayaram was having a Gandasi of which he aimed a blow on
the head of Mangilal but the same landed on the hand. Ramesh,
Devlal, Ashok, Girraj, Shambhu, Harji and Pappu Gurjar inflicted blows
by rods and pipes to Mangilal. This witness was confronted with his
Parcha Bayan (Ex.P9) and the statement recorded under Sec.161 Cr.PC
(Ex.D-1) regarding the specific role attributed by him in the sworn
testimony to the accused Dayaram and he denied having given such
statements. Mahaveer (PW18) alleged in his testimony that Jagdish
gave an axe blow on the head of his brother-in-law Mangilal which he
parried by raising his hand. Mangilal's finger was severed by the blow
and he fell down whereafter, the other accused assailants attacked him
by iron pipes. Thus the witness Mahaveer did not make any allegation
whatsoever regarding the accused Dayaram having inflicted Gandasi
blow on the hand of deceased Mangilal.
15. On a threadbare analysis of the Parcha Bayan and the testimony
of three material prosecution eye witnesses, it becomes apparent that
there is a grave discrepancy in their evidence regarding the specific
role attributed to the accused Dayaram that he inflicted a sharp
weapon and thus it would not be safe to rely upon their evidence so as
to hold that Dayaram caused a grievous injury by a Gandasi on the
fingers of the deceased Mangilal.
16. At this stage, it may be mentioned here that none of these three
witnesses alleged that accused Jagdish gave the blow of axe on the
head of Mangilal from the reverse side. For the sake of repetition, it
may be reiterated that as per evidence of Dr.Arun Sharma (PW-13),
Medical Jurist and Dr.Mamraj (PW-14), the solitary injury as noticed on
the head of Mangilal was a blunt weapon injury.
17. The prosecution has tried to corroborate the evidence of eye
witnesses by the factum of recovery of weapons but when we go
through the statement of Chagan Singh (PW23) Investigating Officer,
we find that the evidence given by him regarding the informations
provided by accused under Sec. 27 of the Evidence Act is totally
perfunctory and lacking the mandatory details of the alleged
informations provided by the accused and thus, the recovery of
weapons effected at the instance of accused are not reliable.
18. In view of the discussion made herein above, this court has no
hesitation in reaching to a conclusion that the material prosecutions
witnesses i.e. Hiralal (PW6), Mahesh Gurjar (PW8) and Mahaveer
(PW18) have tried to hide the genesis of the occurrence. As a matter
of fact, the incident is of a free fight which seems to have flared up
after the violent acts committed by the complainant party in the
Panchayat Bhawan because they were frustrated by non-acceptance of
their tenders. After the free fight started between the parties, the
accused Jagdish allegedly inflicted an axe blow on the head of
deceased Mangilal. As per the medical evidence, the solitary head
injury caused to Mangilal which proved fatal was caused by a blunt
weapon. None of the prosecution witnesses stated that the accused
Jagdish wielded the axe by the reverse side. However, we can presume
that in a free fight and the ongoing melee, it would not have been
possible for any witness to precisely point out how the axe landed on
the head of Mangilal. The evidence of material witnesses regarding
specific role of the remaining accused persons in causing injuries either
to the deceased or to the injured, is neither convincing nor reliable. As
the incident involves a free fight between the parties, the trial court
was absolutely unjustified in invoking Sections 148 & 149 IPC for
convicting the accused appellants in the above terms. The only
permissible view would be to hold each accused responsible for his
individual act. As the incident took place at the spur of moment after
the violence acts committed by the members of the complainant party
at the Panchayat Bhawan, the accused cannot be clothed with either
the knowledge or intention to commit murder of deceased Mangilal.
Accused Jagdish who was armed with an axe did not use the same
with sharp side and rather caused one injury by its reverse side on the
head of Mangilal which proved fatal.
19. Thus we are of the view that accused Jagdish is liable to be
convicted for the offence punishable under Section 304 part I IPC
Simplicitor whereas the conviction of the remaining appellants
Dayaram, Shambhu Dayal, Mahaveer, Ashok, Girraj and Pappu @
Mahendra deserves to be set aside because their conviction for the
substantive offence under Section 302 IPC with the aid of Sec. 149 IPC
is not permissible/warranted by law.
20. In view of discussion made above, conviction of accused
appellant Jagdish as recorded by the trial court for the offence
punishable under Secs. 302/149 IPC is altered to one under Sec. 304
part I IPC simplicitor and on this count, he is sentenced to 10 years'
rigorous imprisonment and fine of Rs.10,000/-; in default of payment
of fine to further undergo six months' simple imprisonment. He is
acquitted of the charges for offences punishable under Section 148 IPC
and Section 323/149 IPC. The conviction of remaining appellants
Dayaram, Shambhu Dayal, Mahaveer, Ashok, Girraj and Pappu @
Mahendra recorded for offences under Secs. 148, 323/149 and
302/149 IPC is hereby quashed and set aside. They are acquitted of
these charges by giving them the benefit of doubt. The impugned
judgment is modified accordingly.
21. Accused Dayaram is in jail. He shall be released from custody, if
not wanted in any other case. The remaining accused appellants
Shambhu Dayal, Mahaveer, Ashok, Girraj and Pappu @ Mahendra are
on bail. Their bail bonds are discharged.
22. However, keeping in view the provisions of Section 437-A Cr.P.C.,
each of the appellant Dayaram, Shambhudayal and Mahaveer are
directed to furnish a personal bond in the sum of Rs.15,000/- and a
surety bond in the like amount before the learned trial court, which
shall be effective for a period of six months to the effect that in the
event of filing of Special Leave Petition against the present judgment
on receipt of notice thereof, the appellants shall be required to appear
before the Supreme Court.
23. The appeals are partly allowed in the above terms.
24. The record be returned to the trial court forthwith.
(RAMESHWAR VYAS),J (SANDEEP MEHTA),J
Sandeep Rawat/18-21
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